Legal aid and civil justice

Effective access to the courts is being threatened.

Yesterday's written statement of the Lord Chancellor, Kenneth Clarke QC MP began well enough. Introducing the Legal Aid, Sentencing and Punishment of Offenders Bill, he said:

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens.

So there you have it. In respect to both civil and criminal justice, providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens.

But in respect of civil justice -- where one party takes another to court -- what does that actually mean?

Civil courts have two broadly overlapping functions. They provide a forum for settling disputes and they provide the means by which individuals can rely on their legal rights. Ideally, a civil court should do both: disputes are resolved by a judge determining the respective legal rights of the claimant and defendant.

In practice, however, almost all civil litigation is settled before it gets anywhere close to a judge for final disposal. As a general rule, litigation is settled in favour of the party in the stronger negotiating position: the party with more money, with better access to appropriate legal advice, and with the greater ability to assume the risk of losing.

In this way, the early settlement of civil disputes will usually tend to disadvantage the claimant or defendant that is weaker than the opposing party. It is only if the claimant can get their case before an impartial and independent court that they can hope to take the benefit of their legal rights. Otherwise, civil litigation is reduced to what the stronger party can get away with. Dispute resolution -- even "early dispute resolution" -- is not identical to access to justice. Indeed, it can mean the reverse.

With this in mind, let us see what Clarke also said yesterday in the written statement, specifically about civil justice:

In civil justice, we have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court -- all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

However, these appear to be weasel words.

Take, for example, "our current system of legal aid too often encourages people to bring their problems before the courts" and replace the word "encourages" with the word "enables". If the reality of the matter is that the current system of legal aid enables weaker parties to have access to justice - and the determination of their legal rights by judges - this cannot be sidestepped easily by mischaracterising this access as "encouragement".

Similarly, take "sometimes for litigation that people paying out of their own pocket would not have pursued" and replace the word "would" with "could". Again, if people cannot pursue litigation but for the system of legal aid, then Clarke is mischaracterising the effect of that system.

So in one written statement, Clarke gives an assurance that he accepts providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens; and then a few sentences later he undermines that assurance in respect of civil justice by deftly casting aspersions on those who use legal aid so as to gain access to the courts for the determination of their legal rights.

In fact, the assault on the civil legal aid system announced yesterday is horrific and wrong-headed.

Instead of seeking to target civil legal aid on cases which may not otherwise be able to proceed to court, the Ministry of Justice is simply taking whole areas of civil law out of the system altogether.

At a stroke, legal aid will no longer be available for clinical negligence, employment, immigration, and welfare benefits cases. It will also not be available for most private family law cases, debt and housing issues, and education cases.

Just listing these areas of law makes one realise that it will be those less able and less equipped to deal with the stress and sheer expense (and costs risks) of civil litigation. Without civil legal aid, weak parties will simply be at the mercy of the litigation strategy of the stronger party.

For example, in family cases - as the Conservative MP Helen Grant pointed out yesterday in the Commons:

mediation is no panacea and that it can fail badly in family cases where there is an imbalance in power.

And it gets worse. The hope of the Ministry of Justice is that some of those who will no longer have access to civil legal aid will obtain legal help on a "no win no fee" basis, especially in respect of clinical negligence. This means that the claimant's lawyers will, if successful, charge an additional "uplift" on their fees, sometime up to 100 per cent of their actual charges, to the losing party. As the defendant will invariably be some part of the National Health Service, these "savings" will in practice cost the taxpayer twice the amount: it will just be the Department of Health's problem, not the Ministry of Justice's.

Then there is the general effect of their being more claimants and defendants without legal assistance. "Litigants in person" are a considerable drain on any courts resources. What should be one hour applications will tend to last one day, and trials which should take one day will tend to last a week. Accordingly, removing civil legal aid will be a false economy for the civil justice system as a whole.

There is no perfect form of ensuring access to justice for civil litigants without private resources. And the Ministry of Justice is having to make savings thrust upon it by the government as a whole. It cannot be blamed as if this were a policy that it formulated free from budget restraints.

All that said, the cuts to civil justice legal aid make no sense on their own terms and could cost the state more overall.

There is no reason to believe that law firms will be able to provide advice to those who no longer qualify; and those firms that do will seek often to burden the taxpayer by other means, through higher costs.

Individuals without civil legal aid or other access to lawyers will simply not seek to rely on their legal rights, or will be bullied into unfair settlements, or will clog up the already inefficient civil courts. None of these are attractive outcomes.

It may be that our Lord Chancellor sincerely believes providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens. However, his department's current civil justice aid policy means this "fundamental responsibility" will certainly not be discharged in practice.

 

David Allen Green is legal correspondent of the New Statesman and a practising solicitor.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Theresa May’s Brexit speech is Angela Merkel’s victory – here’s why

The Germans coined the word “merkeln to describe their Chancellor’s approach to negotiations. 

It is a measure of Britain’s weak position that Theresa May accepts Angela Merkel’s ultimatum even before the Brexit negotiations have formally started

The British Prime Minister blinked first when she presented her plan for Brexit Tuesday morning. After months of repeating the tautological mantra that “Brexit means Brexit”, she finally specified her position when she essentially proposed that Britain should leave the internal market for goods, services and people, which had been so championed by Margaret Thatcher in the 1980s. 

By accepting that the “UK will be outside” and that there can be “no half-way house”, Theresa May has essentially caved in before the negotiations have begun.

At her meeting with May in July last year, the German Chancellor stated her ultimatum that there could be no “Rosinenpickerei” – the German equivalent of cherry picking. Merkel stated that Britain was not free to choose. That is still her position.

Back then, May was still battling for access to the internal market. It is a measure of how much her position has weakened that the Prime Minister has been forced to accept that Britain will have to leave the single market.

For those who have followed Merkel in her eleven years as German Kanzlerin there is sense of déjà vu about all this.  In negotiations over the Greek debt in 2011 and in 2015, as well as in her negotiations with German banks, in the wake of the global clash in 2008, Merkel played a waiting game; she let others reveal their hands first. The Germans even coined the word "merkeln", to describe the Chancellor’s favoured approach to negotiations.

Unlike other politicians, Frau Merkel is known for her careful analysis, behind-the-scene diplomacy and her determination to pursue German interests. All these are evident in the Brexit negotiations even before they have started.

Much has been made of US President-Elect Donald Trump’s offer to do a trade deal with Britain “very quickly” (as well as bad-mouthing Merkel). In the greater scheme of things, such a deal – should it come – will amount to very little. The UK’s exports to the EU were valued at £223.3bn in 2015 – roughly five times as much as our exports to the United States. 

But more importantly, Britain’s main export is services. It constitutes 79 per cent of the economy, according to the Office of National Statistics. Without access to the single market for services, and without free movement of skilled workers, the financial sector will have a strong incentive to move to the European mainland.

This is Germany’s gain. There is a general consensus that many banks are ready to move if Britain quits the single market, and Frankfurt is an obvious destination.

In an election year, this is welcome news for Merkel. That the British Prime Minister voluntarily gives up the access to the internal market is a boon for the German Chancellor and solves several of her problems. 

May’s acceptance that Britain will not be in the single market shows that no country is able to secure a better deal outside the EU. This will deter other countries from following the UK’s example. 

Moreover, securing a deal that will make Frankfurt the financial centre in Europe will give Merkel a political boost, and will take focus away from other issues such as immigration.

Despite the rise of the far-right Alternative für Deutschland party, the largely proportional electoral system in Germany will all but guarantee that the current coalition government continues after the elections to the Bundestag in September.

Before the referendum in June last year, Brexiteers published a poster with the mildly xenophobic message "Halt ze German advance". By essentially caving in to Merkel’s demands before these have been expressly stated, Mrs May will strengthen Germany at Britain’s expense. 

Perhaps, the German word schadenfreude comes to mind?

Matthew Qvortrup is author of the book Angela Merkel: Europe’s Most Influential Leader published by Duckworth, and professor of applied political science at Coventry University.